Thursday, January 05, 2006

More patent nonsense from the Globe and Mail

After a quick swing through the Smucker peanut butter and jelly patent, Eric Reguly heads to the NTP/RIM case:

No company knows about the two-front war better than Research In Motion, the Canadian maker of the ubiquitous BlackBerry wireless e-mail gadgets. RIM, the market leader by a long shot, faces competition from Palm, Microsoft and other giant tech firms keen on dethroning the BlackBerry. The far more serious and immediate threat comes from NTP, the Virginia company with no office, no employees, no operations.

What it does have is a raft of patents on the design of a wireless e-mail network. NTP has accused RIM of violating five of the patents. Unless a settlement is reached, RIM potentially faces the court-ordered shutdown of its U.S. network, home to 3.7 million happy BlackBerry users. That would wreck Canada's premier tech player, whose market value is $14-billion, not far short of Nortel's.

NTP may have a legitimate case, but it sure doesn't look that way if you're sitting on the sidelines, thumbs dancing merrily over your BlackBerry keyboard.

Nobody argues that RIM knew about the NTP patents (obtained by Thomas Campana, the electrical engineer who died in 2004) when it built the BlackBerry. RIM copied nothing and NTP is the first to admit so. Ignorance of existing patents is no defence, of course. NTP has patents and it wants RIM to pay up. The bill could reach $1-billion (U.S.) or more.

But what exactly are these patents? Mr. Campana and the company that employed him in the 1980s, Telefind, worked on a roaming pager device of sorts. Later, on his own, Mr. Campana refined the idea somewhat. He envisaged a system that could send e-mail from computers to wireless devices. NTP -- New Technology Partnerships -- was created and patents were granted in the early 1990s.

The point is, the notion of a wireless e-mail network existed before NTP came along. NTP was just smart enough to nail a few patents on a rudimentary idea. After that, a whole lot of nothing was accomplished. No device or network was built. The apparent strategy was to sit around until someone else built a wireless e-mail system -- RIM, as it turned out, in a different country -- and unleash the lawyers. All of which raises the question: Can you patent an idea? Is the mere notion of a specific technology actually technology that can be walked down to the patent office and registered?

Imagine if Henry Ford invented the four-wheeled car with an internal combustion engine (he didn't) and slapped a patent on it? If that patent were airtight, it would mean that no one else could improve on the horseless carriage. Innovation would be stifled and we might all be driving Model-Ts today.

As it turns out, RIM seems to have found a sympathetic voice in the U.S. Patent and Trademark Office, which in December issued non-final rejections of some of the NTP patents. RIM says it expects all five patents tied to the BlackBerry litigation to be rejected. (If RIM chairman and co-chief executive officer Jim Balsillie is convinced his company will be vindicated, as he says he is, why is he still offering to pay royalties on patents that may prove invalid?)

Guess Reguly never heard about the Selden patent or what ALM did to Henry Ford. Probably didn't hear about the re-exam of the Smucker patent either.

The basic deal with patents is that the public gets disclosure and the inventor gets a limited right to exclude. Writing things down for everybody to see moves innovation along. If NTP's claims were in the prior art, it will come out. Why RIM didn't get the job done in district court is a good question, but a final office action in the re-exam rejecting claims at the USPTO would be help. But, remember, in the director-ordered re-exam of the Eolas patent, there were two non-final rejections, but Eolas prevailed, thanks to declarations made by two university professors (one at Princeton, one at Michigan).

The Globe and Mail did NOT publish my letter complaining about the previous patent stupidity appearing in the Globe and Mail (RIM and eBay losing because the US has a first to invent system). However, when that nonsense appeared south of the border in Detroit, people did tee off on it.

After he clues in on what's going on in the NTP/RIM case, maybe Reguly can review some of the facts in the Smucker re-examination, 90/005,949.
In the Examiner's Answer (signed Jan 28, 05; mailed March 23, 05), we find a rejection under 103, but no rejection under 102. The cited references are US 3,782,270, US 5,112,632, and Prepared Chef Kitchen Brochures. If Reguly really thinks he has some evidence of a direct anticipation of the claims of the Smucker patent, maybe he ought to forward it to the USPTO. Otherwise, he, along with Jaffe and Lerner, comes off as a poseur who doesn't really understand what's going on. The USPTO can't just say "this is obvious"; it has to supply some proof, as one can see from the structure of the Examiner's Answer.

Separately, in the re-exam, we see a rejection (now overcome) under 112 P 2. In the ill-fated Pfizer v. Ranbaxy case, Ranbaxy tried, unsuccessfully, invalidity under 112 P 4.


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